Q: When I made my Will, I deliberately chose my niece as executor because she was more than likely to outlive me. However, over the past few months she has had mental health problems and I don’t want to upset her further by telling her I am going to replace her as executor. If my niece does not have mental capacity when I die, could my LPA attorney step in as executor?
A: There are several options to resolve your dilemma. Making an appointment with a solicitor will enable you to discuss them in detail and help you decide the best route to take.
To specifically answer the question you have asked, your LPA will cease to have effect upon your death, so any attorneys you have appointed will not be able to act as your Executor by operation of the LPA alone.
When a sole named Executor is unable or unwilling to act, the Non-Contentious Probate Rules 1987 determine who can apply to take out a Grant and administer an estate. These specify that priority to take out a Grant in these circumstances falls to any beneficiaries of the residuary estate. If your attorney is also a beneficiary of your residuary estate, they would be entitled to take out a Grant on this basis.
As all residuary beneficiaries are equally entitled to take out a Grant and administer an estate, it is generally not recommended to rely on the Non-Contentious Probate Rules as it could result in somebody who you would not necessarily choose being appointed as your Personal Representative.
Appointing a substitute Executor in your Will would allow you to select someone you trust to act as your Executor in the event that your first choice Executor is unable to act. You can do this by way of a Codicil. You should speak with a solicitor to ensure that any additions to your Will are executed properly and are legally valid.
This question has been answered by Jessica Wright, a Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194
